01991132_r
07-26-2001
Arthur T. Flores, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Arthur T. Flores v. Department of Agriculture
01991132
July 26, 2001
.
Arthur T. Flores,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01991132
Agency No. 94-0616
Hearing No. 150-96-8382X
DECISION
Complainant filed a timely appeal with this Commission concerning the
issue of the agency's compliance with the terms of the May 6, 1998
settlement agreement into which the parties entered. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that the agency
agrees to:
Pay reasonable attorneys fees and expenses incurred by the employee in
connection with complaint case #94-0616. Fees are to be submitted for
approval by [complainant's attorney].
By facsimile transmission to the agency dated October 8, 1998,
complainant's attorney requested that his August 11, 1998 fee petition
be supplemented to include the amount of $545.96 for additional costs for
deposition and exhibits. The agency responded by letter dated October 9,
1998, indicating that a certain amount had been paid in attorney fees,
and that $545.96 had been paid to complainant for costs. This letter
further made reference to discussions between complainant's attorney
and agency officials, and provided notice that proper procedures were
not followed for the agency to process complainant's leave and expense
requests, including complainant and witness airfare and lodging during
the hearing. The agency requested that complainant's cost petition be
submitted to the agency's Office of Civil Rights Enforcement for review
and certification, providing the address to do so.
Instead, by letter to the agency's Complaints Compliance Division dated
October 15, 1998, complainant alleged that the agency breached the
settlement agreement and requested that the agency implement the above
referenced provision. Specifically, complainant claimed that while the
parties successfully negotiated an amount of attorney fees, negotiations
broke down regarding complainant's costs, and that the agency refused
to discuss the matter after October 8, 1998. When the agency did not
respond to this letter within thirty (30) days, complainant filed the
instant appeal on November 23, 1998.
In response, the agency provided a copy of a January 21, 1999 internal
memorandum. Therein, the agency concluded that the parties had
negotiated and mutually agreed to certain amounts for both attorney
fees and costs, and that complainant, through his attorney, acted in
bad faith by requesting additional payment.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
We find that the plain meaning of the above provision only requires the
agency to pay reasonable attorney fees and attorney expenses. We note
that complainant highlights �pay reasonable� and �expenses incurred
by the employee in connection with complaint case #94-0616." However,
this clause contains no punctuation to suggest this bifurcation.
We also find that the agency did not ascribe to this interpretation,
because the $545.96 in costs it paid to complainant reflect additional
attorney costs specifically requested by the attorney. To the extent
that complainant intended to include reimbursement for his �costs,� this
should have been specifically included in the settlement agreement.
See Jenkins-Nye v. General Service Administration, EEOC Appeal
No. 01851903 (March 4, 1987). Moreover, while not within the purview
of the settlement agreement, we find that the agency's October 9, 1998
letter to complainant's attorney clearly responds to the request for
complainant's costs, and reflects an intent to reimburse complainant for
out-of-pocket costs. We note that the agency correctly noted that these
costs should have been submitted to the agency before they were incurred
by complainant or his witnesses. See EEOC Management Directive 110,
Chapter 7, Paragraph II(G), (November 9, 1999). For these reasons, we
find that the agency did not breach the settlement agreement as claimed
by complainant.
Accordingly, we AFFIRM the agency's decision that it is in compliance
with the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 26, 2001
__________________
Date